Criminal records may have an effect on California employment. Here’s what you need to know about The Effects of a Criminal Record on California Employment.
The California Fair Employment and Housing Act, an antidiscrimination statute, as amended in 2018, restricts a covered employer’s ability to make hiring decisions based on an individual’s criminal history, including but not limited to court records disclosed in a criminal background check.
Can a Criminal Record Affect Employment in California?
The Fair Chance Act generally prohibits employers from the following:
- Including any questions about conviction history on a job application before a conditional job offer has been made
- Asking about or considering criminal history before a conditional job offer has been made
- Considering information about criminal histories not ending in a conviction when making hiring decisions including the following:
- Conviction
- Participation in pretrial or post-trial diversion programs that have been completed and the underlying pending charges
- Arrest not ending in conviction (except for certain exceptions)
- Conviction dismissed, sealed, or eradicated
- Statutorily eradicated convictions
Related: How a Criminal Record Can Affect Child Custody in California
“Ban the Box” Law
The “Ban the Box” law is a statewide law aimed at removing barriers to employment for individuals who have been convicted of a crime. “Banning the Box” laws prohibit California employers from asking about an applicant’s criminal record during the initial application process.
Breaking Down The “Ban the Box” Law
California’s ban the box law prohibits employers from inquiring into an applicant’s criminal history before making a conditional offer of employment. Even after making an offer of employment, an employer cannot deny the applicant because of a conviction without making an individualized assessment.
California law still prohibits employers from asking about, or considering, criminal convictions that have been expunged. AB 1008 takes the law a step further by barring employers from considering any criminal conviction, expunged or not, prior to making a conditional job offer. This state law applies to both felony convictions and misdemeanor convictions in California. However, the law does not apply to the following:
- A position for which a state or local agency is required by law to conduct a conviction history background check
- A position with a criminal justice agency
- A position as a Farm Labor Contractor
- A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history
California 7-Year Rule
The criminal background checks California employers order following a conditional offer of employment goes back for only seven years with a few exceptions. This means that convictions older than seven years will not show up, and therefore employers cannot disqualify employees based on them.
Uncovered Convictions After Job Offer
After making a job offer, the employer can make the job conditional on meeting certain terms or conditions including passing a background check. If the employer finds out about an applicant’s criminal history, the employer may take that into consideration.
Related: How to Disclose Criminal Record on a Job Application in California
Employers making a preliminary decision to deny an applicant because of the person’s criminal history are required to perform an individualized assessment of the applicant. Employers denying the applicant based on their conviction history must notify the applicant in writing. The employer’s written notification may, but is not required to, explain the employer’s reasons or basis for making the preliminary decision to disqualify the applicant. However, the notification is required to contain the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary employment decision to rescind the offer
- A copy of the conviction history report (if applicable)
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond
- The explanation of the applicant’s rights must inform the applicant that they may submit evidence challenging the information in the conviction history report, evidence of rehabilitation, or evidence of mitigating circumstances
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